A Behind-the-Scenes Look at the 2018 Change to Colorado's Spousal Maintenance Statute and New Law on Temporary Maintenance with Divorce Attorney Robin Beattie | Episode 77

This week, Ryan Kalamaya and Robin Beattie discuss spousal support (aka maintenance or alimony). We get the behind-the-scenes story on the changes to Colorado's statute on spousal maintenance due to tax changes. We also cover two recent Colorado cases that significantly impact how divorce courts deal with temporary maintenance.

About Robin Beattie
Robin Lutz Beattie is a Partner in the Lakewood firm of Polidori, Franklin, Monahan & Beattie, LLC. She served as the Chair for the Family Law Section of the Colorado Bar Association in 2018 and 2019. Ms. Beattie is the Co-Chair of the Amicus Committee of the Family Law Section and serves on the Board of Directors of Court Support Jeffco. Ms. Beattie is listed in “Best Lawyers in America” and Super Lawyers and was the President of the First Judicial District Bar Association for the 2013-2014 term.  Ms. Beattie carries a superb rating of 10/10 by the online lawyer directory Avvo.

Ms. Beattie graduated from the University of Michigan with honors in 1993. After three years working as a paralegal in family law, Ms. Beattie attended law school at the University of Colorado School of Law, where she graduated with highest honors (Order of the Coif) in 2002.

What is Divorce at Altitude? 

Ryan Kalamaya and Amy Goscha provide tips and recommendations on issues related to divorce, separation, and co-parenting in Colorado. Ryan and Amy are the founding partners of an innovative and ambitious law firm, Kalamaya | Goscha, that pushes the boundaries to discover new frontiers in family law, personal injuries, and criminal defense in Colorado. 

To subscribe to Divorce at Altitude, click here and select your favorite podcast player. To subscribe to Kalamaya | Goscha's YouTube channel whe

What is Divorce at Altitude?

Ryan Kalamaya and Amy Goscha provide tips and recommendations on issues related to divorce, separation, and co-parenting in Colorado. Ryan and Amy are the founding partners of an innovative and ambitious law firm, Kalamaya | Goscha, that pushes the boundaries to discover new frontiers in family law, personal injuries, and criminal defense in Colorado.

To subscribe to Divorce at Altitude, click here and select your favorite podcast player. To subscribe to Kalamaya | Goscha's YouTube channel where many of the episodes will be posted as videos, click here. If you have additional questions or would like to speak to one of our attorneys, give us a call at 970-429-5784 or email us at info@kalamaya.law.

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DISCLAIMER: THE COMMENTARY AND OPINIONS ON THIS PODCAST IS FOR ENTERTAINMENT AND INFORMATIONAL PURPOSES AND NOT FOR THE PURPOSE OF PROVIDING LEGAL ADVICE. CONTACT AN ATTORNEY IN YOUR STATE OR AREA TO OBTAIN LEGAL ADVICE ON ANY OF THESE ISSUES.

Transcript

Ryan Kalamaya (3s):
Hey everyone. I'm Ryan Kalamaya

Amy Goscha (6s):
And Amy. Goscha

Ryan Kalamaya (8s):
Welcome to Divorce at Altitude. A podcast on Colorado family law

Amy Goscha (13s):
Divorce is not easy. It really sucks. Trust me. I know, besides being an experienced divorce attorney, I'm also a divorce.

Ryan Kalamaya (21s):
Whether you are someone considering divorce or a fellow family law attorney listening for weekly tips and insight into topics related to divorce, parenting and separation in Colorado. Welcome back to another episode of Divorce at Altitude. I am Ryan Kalamaya. We took a little holiday break, but we are back recording in this week. We are talking about spousal support or maintenance, alimony, whatever you want to call it. We're talking about that concept. And we are joined by Robin Batey. Robin is a partner in the Lakewood firm of polo, Dory, Franklin Monahan, and Beatty.

Ryan Kalamaya (1m 3s):
She served as the chair for the family law section of the Colorado bar association in 2018. In 2019, we talk about her experience in that role because she was involved in changing the maintenance statue. And we talk a lot about that, but Robin is the co-chair of the Amicus committee of the family law section and serves on the board of directors for court support in Jeffco, she's listed as one of the best lawyers in America and super lawyers. She was the president of the first judicial district bar association in 2013, in 2014, she carries a superb rating of 10 out of 10 by the online lawyer directory of advo.

Ryan Kalamaya (1m 44s):
She graduated from the university of Michigan with honors in 1993, and then she worked for family law firm as a paralegal before going to the university of Colorado at law school. And she talks about how she went to CU and it relates to the Columbine massacre or co-main high school massacre, but she graduated from CU law school with the highest honors in 2002. She is well-known as an expert in spousal support. And before I go on much longer, Robin, welcome to the show. Well, I will

Robin Beattie (2m 18s):
Say it's just so great to be here today.

Ryan Kalamaya (2m 20s):
So Robin, you went to the university of Michigan. Are you a big Wolverines fan? I was

Robin Beattie (2m 27s):
When I was there, but since then, I'm a Broncos

Ryan Kalamaya (2m 29s):
Fan. Got it. Well, unfortunate losses for both teams last week, but can you tell us, how did you end up at the university of Colorado for law school?

Robin Beattie (2m 40s):
I'd been living in Colorado for quite a while before I went to law school. I, it is not, my first career was the second or third year.

Ryan Kalamaya (2m 49s):
And you started off with being a paralegal, right?

Robin Beattie (2m 53s):
Paralegal. And I also worked for the commerce city police department as a victim advocate. So when went to law school, I actually was planning to go to school to be a social worker specializing in crisis counseling. That was the plan

Ryan Kalamaya (3m 8s):
And you eventually made it into family law. So tell us a little bit about that transition from being a victim advocate and ultimately ending up being a divorce lawyer.

Robin Beattie (3m 20s):
And I was making my decision trying to figure out whether to go to law school or social work school. It actually coincided with the Columbine tragedy and I was a first responder to that. And it was definitely the worst experience I've ever had. I hope it's always the worst experience I've ever had because it's a day I'll never forget. And after that, I just kept waking up in the morning crying and I went on another call afterwards, another call to a victim site. And it was very, it was not a tragedy really. I mean it was, but it wasn't in the scope of tragedies. It was low on the scale. And I, I just had a, a really hard time empathizing with the person her cat had been killed.

Robin Beattie (4m 3s):
And what she wanted was for the dog who killed her cat to then be killed. And I was trying to say, you know, that's not necessarily what we should be doing, are you really sure that's what you want to do? But part of me just was disconnected with it. And I realized that was probably not going to work. So I ended up calling the university of Colorado and saying, I know I said, I didn't want to come to school, but now I do. And when I told them this circumstances, they said, well, yes, you can be a student. And so I started law school when I was 30.

Ryan Kalamaya (4m 31s):
And then tell us about, you were intending to be a social worker. You know, it's funny, my dad was a lawyer and he went to CU law school and I went to law school knowing that I wanted to be a trial lawyer, but I thought the last thing would be living in Aspen and doing divorce work. And so, but, you know, kind of careers take their twists and turns. And so tell me a little bit about how you ended up coming to family law as your primary practice area.

Robin Beattie (4m 58s):
I started at a firm called Featherstone de Sisto, which is a corporate law firm boutique really neat firm. I liked it was a trial firm and you don't ever go to trial when you're a trial lawyer with a corporate firm. And so, you know, I didn't see the inside of a courthouse when I was a paralegal working for a family lawyer here in Denver. He saw the inside of a courtroom all the time. So like you, I wanted to be a trial lawyer. Wasn't going to trial, you know, it awesome. It's that connection with people because when you're a civil lawyer, people's insurance companies are covering things. And so they're not really intimately connected with the outcome of their cases. It, it matters, but it doesn't matter.

Robin Beattie (5m 39s):
So by doing divorce law, I mean, we're dealing with the most important things in people's lives, their children, their money, their families. I mean, we, we deal with the ultimate issues.

Ryan Kalamaya (5m 50s):
Absolutely. And I think that for people, I'm sure you get asked all the time, why do you do what you do? Or how can you do what you, we hear that all the time, because we do get to deal with the kind of heavy stuff, the parenting and the money. And it oftentimes feels like the world is ending for our clients.

Robin Beattie (6m 7s):
That is true. And, you know, on some levels, I think that having worked in a field where life really was ending, literally for people, I can help kind of ratchet some of those things down. Now, for instance, if somebody's really coming unglued over a financial issue, a, you know, you can let them know, yes, this is extremely serious. I'm not minimizing it, but there are, we're seeing, so it could be happening to you right now. And that's more true with, with staff and other attorneys in my office. I mean, we can put it in perspective pretty easily,

Ryan Kalamaya (6m 39s):
Right? Well, you're here today. We're going to talk about maintenance here. The one of the maintenance gurus for Colorado, we're going to get into that. So before we begin, I think that it would be helpful for us to define what Spousal Maintenance or alimony, cause at least for me, I use those interchangeably. So if someone walks into your office Robin, or does, you know, we're in virtual kind of land at this point and they say, I just don't want to pay maintenance. How do you explain to that person, what maintenance is in, how the courts consider it just in a broad strokes?

Robin Beattie (7m 13s):
Well, I mean, maintenance now is very heavily regulated by the legislature. The legislature has changed that statute several times since 2014 and really stipulated what they want us to be looking at. And the fact that they do want people to be paying and receiving maintenance. They want the payee's lifestyle to continue. And I expect part of that is that they want the lifestyle to continue without the state having to step in to help they want that ex spouse to step in to help. So, you know, what I explained to a person who's coming in is I've never met anybody who really wants to pay maintenance, but unfortunately it is part of what we all agreed to when we get married, unless we have a prenuptial agreement that makes it so that maintenance won't necessarily have to be paid.

Robin Beattie (8m 5s):
It's just part of getting a divorce, unfortunately, or fortunately, depending on who you're representing

Ryan Kalamaya (8m 10s):
Well, and you referenced those statutory changes and you know, one of them was the guidelines. Some people refer to them as formulas, but then there was also a significant change with the taxability. So can you talk, you were involved in that and that's one of the reasons that we wanted you to come on and talk and give kind of a pull back the curtain and really have the wizard of Oz kind of speak to what happens in the changes with the taxability of maintenance and how does the legislature what's that process like? So can you give our listeners an idea of what you did and how that all that machine works behind the curtain so to speak?

Robin Beattie (8m 51s):
Sure. I definitely can't. So, I mean, I think the first thing that we just need to about is that there was a formula that was put into the statute. I believe it was in 2014, before that there was no formula, the courts considered, what does this person need? Does this person need maintenance at all? There was something called a threshold tasks that people had to meet before maintenance was even discussed. And it was a very much a consideration of the totality of the circumstances. The formula was enacted in 2014, in an essence, what the formula provided was that the court would take 40% of the total income.

Robin Beattie (9m 33s):
Okay. And then subtract the income that was earned by the lower earner. So in other words, if the total income was a hundred thousand in the lower, or was earning 20,000, they would subtract that. Okay. So that the lower earner would have a total of 40,000, which would include that 20,000. So in that scenario, the higher earner would pay 20,000 to make it a 40,000 a year salary for the lower earner in a $60,000 a year salary for the higher earner, the formula was predicated on the concept that existed for as long as you and I have been practicing law. And really, as long as even the people who founded my firm, I've been practicing loss.

Robin Beattie (10m 15s):
So over 50 years, and that premise was that the higher earner was able to deduct maintenance. So in other words, if he or she were paying the $60,000, he was able to discuss, well, in this case, $20,000, excuse me, to stick with the same example. But if they were paying $20,000, they would deduct that right off the top of their income taxes. So that instead of showing income of a hundred thousand on their tax return, they'd show an income of $80,000. And that was a great way to sell a maintenance, you know, in the old days, because it wasn't as bad. But now what happened was that the tax cuts and jobs act changed the taxability of maintenance from being tax deductible to the higher earner.

Robin Beattie (11m 3s):
And now it is not tax deductible to the higher earner. So in other words, that higher earner has to pay taxes and then any maintenance payment comes out of their net. And that's, that's a hard issue. And so when that happened, I was the chair of the family law section for the Colorado state bar association. And we were obviously all just like, what are you going to do right now? Because the whole statute, the whole formula was premised on the idea that the maintenance was deductible. So the first thing we did was at the next executive council meeting, we meet once a month, we took a poll as to whether we should keep the formula at all.

Robin Beattie (11m 46s):
And I thought that the results of that poll were interesting because when the formula was first being considered first being discussed, people didn't really like it. But at this meeting everyone, except one person believed that the formula was helpful, believed that it helps settle cases in believed that we should continue with a formula. So that's the first decision that we had to make. Then the next decision is, okay, well, should we then change the formula in response to this change in the tax code? And again, with the exception of one person, we all decided, yes, we're going to change the formula.

Robin Beattie (12m 26s):
Well, I believe that was probably the third Friday in January or the third Friday in February. I don't remember which one it was, but whichever one, it was, there were only six weeks until the end of the legislative session. So it must have been February. And what happens is when you're trying to pass new legislation, you have to first decide what you want to have as your new statute, what modifications you want to make to an existing statute. And then you have to find someone, a legislator to sponsor that in. Then you have to develop the recommendations for that sponsor.

Robin Beattie (13m 6s):
And then you have to argue at the legislature to get the new legislation passed. You have to have the family law section approve it. You have to have the overall Colorado bar association approve it. So this is typically not a process that happens in six weeks. This is typically a process that happens. We start in September and then, you know, the former head of the legislation was me Remos this. And she would always have the bills for us now, it's I believe Chris Ratliff is one of the chairs and there's always new bills going. And they're just discussed every meeting. And the changes are discussed at every meeting over the course of the year that wasn't going to happen here.

Robin Beattie (13m 46s):
So we formed a committee and the committee asked several local accountants to help us in several local accountants to analyze how the impact of this would or should affect the formula. And we ended up with a chart developed by Eric six in that chart, I'm going to just call it the split, the pain chart.

Ryan Kalamaya (14m 11s):
I can't see Robin showing there's a chart on the video that she's showing that Eric six had produced.

Robin Beattie (14m 18s):
Yeah. And so, so what he determined is that, you know, everyone's going to suffer, right? Because by shifting this tax burden from the lower or to the higher earner, you've reduced your net sum. Okay. So everyone's going to suffer. So what the magical chart did was it decided where are the cutoff points where people will suffer equally? And, you know, they kind of decided, and Eric decided, and then other people weighed in and agreed that the first set of adjustments needed to be made for people who earned under 10,000. And if they, if we applied one adjustment to that group of people, it would help share the pain

Ryan Kalamaya (14m 59s):
Robin was. And just for people that to kind of understand my recollection and correct me if I'm wrong is the, the deductability of maintenance. They, it was a last minute that was kind of at the end that they pulled that too, because what ultimately happens, you and I both know it was one of the last win-wins in a divorce. I used to explain to people where if, for example, you could have, we have a hypothetical divorce scenario, Eric and Melanie Wolfe. If Eric is going to be paying Melanie $10,000 a month, and he can deduct that, then Melanie, if she's in a lower tax bracket, she gets more after taxes because it's taxable to her.

Ryan Kalamaya (15m 41s):
And essentially who subsidizes that difference is the us government, the IRS, because we were playing tax arbitrage. And so you, and I would explain to clients, Hey, we can try to get as much maintenance instead of child support, or there's really a win-win. And when you were saying that there's this lose, lose, or feeling the pain, it was because that subsidy by the government was no longer available. And so at least the step ups and the threshold issues that you guys addressed was that there's different tax consequences at different income levels. So if there is less money than the taxes are not, the impact is not as great.

Ryan Kalamaya (16m 24s):
Is that generally accurate? Yes,

Robin Beattie (16m 27s):
That's generally accurate. And yes,

Ryan Kalamaya (16m 31s):
This episode is brought to you by our law firm. Kalamaya Gosha Amy and I describe our law firm as an innovative and ambitious trial team that pushes the boundaries to discover a new frontier is and family law, personal injuries in criminal defense in Colorado. We currently have offices in Aspen, Glenwood Springs, Edwards, Denver, and Boulder. You want to find out more visit our website, Kalamaya dot law. Now back to the show. And so you guys then had this last minute change in the tax jobs act about maintenance and the taxability. And you're like, whoa, we gotta fix this. I remember waiting.

Ryan Kalamaya (17m 11s):
And because there were these rumors or rumblings, and everyone was just waiting for this new formula or new way that Colorado was going to approach it. You guys did a, I mean, it was a rush legislation because of, we were kind of in this holding pattern. Well,

Robin Beattie (17m 29s):
We hadn't changed it. Every payor of maintenance would have suffered greatly. So that was the rationale for making the change in such a hasty fashion. Was it perfect? No, it's not perfect still because we've actually never amended it. It must be good enough because we never amended it, but I would have loved to have had more time. It's just a question of, are we going to let everybody suffer while we think about this and wait for a whole nother year? Or are we going to fix it now and then correct. Anything leader if we have.

Ryan Kalamaya (17m 59s):
Yeah. So tell me about Eric comes up with these thresholds and then did you go what happened from,

Robin Beattie (18m 5s):
Well, so the committee, which was me in probably six or seven other members of the family law section, executive council and Eric and Eva, and super, we all sat down and just argued and hashed it out and looked at the magic table that I briefly showed you and, and tried to decide whether we wanted to change the statute and how, and then, and then we did, and I believe that it was Jeremy ramp and Beth Henson who argued it to the legislature and actually made the changes to the statute. And they had to change the child support statute too. So it was fairly all encompassing,

Ryan Kalamaya (18m 46s):
Right. And for listeners that don't understand, or have we, haven't done a long form episode on child support, but you know, generally speaking maintenance when we're talking about income in divorces for child support or maintenance in particular, because that's really where income can really matter. We're talking about gross income. So before taxes, and so child's born, we are looking at income before taxes, but you got to factor in the maintenance aspect. So they're all intertwined.

Robin Beattie (19m 15s):
It is a mathematical mess. I think that's the technical term, right?

Ryan Kalamaya (19m 19s):
I like to tell clients, I went to law school, not to do, you know, to avoid math. And then I ended up being a divorce lawyer where I do math all the time. And now I love it. I mean, in terms of kind of crunching the numbers and figuring out what's going to work. So, so you guys made it happen. What are your thoughts in retrospect on the process and what you guys were able to accomplish?

Robin Beattie (19m 40s):
I am proud that we were able to do it so quickly. I think that was a boon to most Coloradans. I would probably think about just having someone go over the math again at a more leisurely pace, but I have to assume someone's done that. I haven't heard a large number of complaints. And, and really when you look at Eric's chart, it does divide the pain. I mean, there was going to be pain there isn't, there's no way to, to change this and not have each party have less money. And I think we did do the best possible job of dividing that. Now I think that very important thing to know is that this doesn't apply to people whose incomes are over $200,000 for a reason.

Robin Beattie (20m 27s):
And the reason is that once you get to that level, you, you know, you need to be looking at the specific tax consequences, right? You need to be looking at what tax deductions does that person have. And that's a factor in the new maintenance statute, because we want people to be able to put forth arguments that I shouldn't have to pay as much in maintenance because my tax bracket is this much higher for X reason, or I don't have the mortgages to do that or mortgage interest to the doctor, whatever that argument is, you need to look at that post tax income. In another item that we thought about when we were working on this was who can afford to have that done to, to specifically look at those numbers with a CPA and hire a CPA for their

Ryan Kalamaya (21m 15s):
Right. And I think that what you referenced when you did the straw poll, the internal poll is going back to 2014. Cause I remember the, the concept of a formula, a lot of lawyers were adverse or they were opposed to it because they thought, oh, it's just going to be reducing it to a formula, but your firm has like the maintenance Bible. And I've heard you talk about it. And you have every single case on this outline that's ever dressed maintenance. The reality that we all knew was that there was this, it was really arbitrary, or it seemed to be arbitrary as to how judges approached maintenance in it. When you had this guideline or formula, there was some variance, but we asked, you had kind of an idea of where, what ballpark you were playing in.

Ryan Kalamaya (22m 5s):
And I think that that really helped. And people saw that the benefit of the predictability, and you could go to your client and say, well, if they apply the formula, then this is what happens. And I've seen at family lines too, which I know that you organized. And I can't remember if it was the one that you organized, but I saw a panel of judges and most of them said I started the formula and then I worked down. So an example that you just went through is maybe a doctor and the doctor could make a lot of money. And on that guideline, they might be above the guideline, but they might have student loan payments that cuts into that discretionary income. So, you know, it might be a huge factor that you have to consider, but a doctor is able to pay someone like Eric six to do a net spendable income analysis.

Ryan Kalamaya (22m 55s):
And, you know, we can get into the weeds on that. But that really, I think is what you guys were looking at in creating that kind of threshold of 240, I believe, thousand dollars, anything above that. So is that, do you have kind of any thoughts on that work, the net spendable income or what happens above those, those cases or that income level?

Robin Beattie (23m 18s):
I think that the net spendable income analysis is very valuable when you have the higher earners looking at how much each person pays in taxes is, is imperative because someone who's paying alternative minimum tax, for example, they're paying up to 50% of their income in taxes. And so, you know, there's no way that we shouldn't be looking at that. And I find that sometimes people don't understand that judges don't understand it right. Till you present it in black and white and nor should they. Right. I mean, when we talk later about some of the more recent cases, we're going to talk about findings, findings, findings. I think you have to have that evidence so that the court has a premise for those findings.

Ryan Kalamaya (24m 1s):
Yeah. And that point, I mean, so when we're talking about NetSpend, the blue income, what we're looking at is how much someone makes and there, it could be variable, but then there, there are some knowns taxes is certainly a known issue, but someone is entitled to, for example, health insurance or their general livelihood of paying their mortgage, or they might have some sort of obligation. Like I referenced a doctor with the student loans. And so what someone like Eric six will do is look at the person's income and then say, well, how much money are they going to have after they have to pay these various expenses? And there's always a debate about what is included in that, but taxes or insurance or some obligation.

Ryan Kalamaya (24m 44s):
And so then you see, after it's all said and done, how much do they have in income that they could potentially pay to the receiving spouse?

Robin Beattie (24m 53s):
And you make a good point. I mean, certainly insurance, especially insurance used to secure maintenance needs to be on that chart because that can be expensive depending on how old the payor is.

Ryan Kalamaya (25m 4s):
Yeah. I've seen it where property payment and equalization payment that can really impact the amount of net spendable income. Cause if you deal with property and we won't go into the factors, but you know, in terms of addressing the amount of property. So, but anyways, why don't we switch gears and talk about temporary maintenance and support because there've been a couple of new cases that have come out for guidance. And I think I know that in terms of, when you're talking about arbitrariness, there are some pretty significant differences of opinion in terms of strategy. I know within divorce lawyers as to how they approach temporary maintenance. So can you tell our listeners what is temporary maintenance? And I guess what are the kind of competing of viewpoints on that?

Ryan Kalamaya (25m 47s):
And then we can talk about kind of the new cases that have come out.

Robin Beattie (25m 51s):
So with temporary maintenance, you're looking at the time between, well, I'm going to say this with the caveat that now that these new cases kind of change that. But, but what I tell my clients or used to tell my clients was you're looking at the time from when you file the petition until the date of permanent orders in, so the temporary maintenance isn't even, you're going to go to temporary orders 90 days in maybe one 20 days in. So I think that if you can work things out, you shouldn't necessarily rely on that, but I think I'm going forward before actually explaining it. So at temporary maintenance would be, is it's the amount of support that the higher earner is going to give to the lower earner during that temporary timeframe before permanent orders.

Robin Beattie (26m 37s):
And the question I think that you're referring to is do I go to a formal, temporary orders hearing to establish formal number, or do I insist on entering into a temporary stipulation to establish a formal number for temporary maintenance? Or do we just do what we refer to as maintaining the status quo, where that two people both put their incomes into the joint account as they have always done, and they pay their bills as they have always done out of that joint account. And there is no formal either temporary orders hearing or temporary orders agreement because the parties are just working with the money they have out of that joint.

Ryan Kalamaya (27m 18s):
Right? And I think the late bill Honeycutt, who was a well-known divorce attorney, I remember I had a case with him and in his Southern drawl, he said, Ryan, you know, as long as bills are getting paid, I'm not, I'm okay with the status quo. And that was when he represented a party that was going to be receiving maintenance. There was no question about it, but the, the issue is do you push that issue at the very beginning because you can have an argument about how much is that amount going to be, and you can save that argument or that fight for another day because both parties are going to be incentivized. They know, even though it's not supposed to be used for consideration of permanent or, you know, maintenance at final orders, everyone knows that if you agree on $10,000 a month, for example, you know, that could be too high or too low in both parties kind of posture up.

Ryan Kalamaya (28m 12s):
And there's always that risk. If they just avoid that argument, then they can, you know, move forward without any sort of arguments. So there's definitely these competing issues that at least you and I have to, to navigate. So, but why don't you, you referenced it earlier. There's been some new law regarding how divorce lawyers in Colorado look at temporary maintenance. So can you tell us about some of those new developments in Colorado law?

Robin Beattie (28m 39s):
Yeah, I can. So one of the cases is called marriage of Harold and <em></em> and I don't know, do you want me to tell you the case site or so it's 4 84 P third, 7 82. It came out in 2021 and it's, it's a case about, should a court or retroactive temporary maintenance. So, you know, these people had, I guess, been fighting for a year already when they got to their temporary orders hearing God forbid. And at that point, the court awarded wife $12,000 per month in temporary maintenance retroactive to the date of filing.

Robin Beattie (29m 17s):
So that's $144,000 in retroactive maintenance. And what was I thought unusual about the case is that the parties were actually living together after the petition was filed, the husband was paying the mortgage, he was paying the utilities, he was paying the tshirt expenses and the wife still got retroactive, temporary maintenance. So I don't know if you want me to opine on the upshot of the case was that, you know, the, one of the holdings was really concerning findings and the findings that the court has to meet for the maintenance, because many of the recent cases have just harped on the fact that there are specific findings courts need to make in different situations.

Robin Beattie (30m 4s):
So the court needs to make one set of findings for temporary maintenance, one set of findings for permanent maintenance, another set of findings for modification and maintenance. And when the parties failed to present evidence about findings, then the cases remained, which really is somewhat tragic for the parties, right? Because you've already gone through your divorce. And this was obviously a very long one if temporary orders where you're out and you've gone through, you know, permanent orders. And then you've gone up to the court of appeals, which generally takes about a year or more to get a ruling, and then it's going to be remanded to the district court. So this is really, these are the divorces that never end.

Robin Beattie (30m 45s):
And I think that's something that practitioners for sure need to be focused on is what are the findings that need to be made? In my opinion, that statute is so repetitive. You have to make the same findings over and over. I mean, it's, that's a change I would make if I had the druthers or the choices to be to the legislature for a day.

Ryan Kalamaya (31m 7s):
Right. I think it's interesting when you look at the findings that are needed to value a business, it's like $50 million. It's, there's not necessarily, it's just like, I believe this expert, or I believe this party. And then I think the value is X, whereas in maintenance, it could be a thousand dollars a month, which compared to a $50,000 business is a drop in the bucket. But the amount of work that the judge has to do to award a thousand dollars a maintenance is, is pretty significant. The interesting thing, at least from my perspective on the Herald case, was it, it did seem like the cor punished the husband for not paying. He was the payor because they live this really lavish lifestyle.

Ryan Kalamaya (31m 48s):
And then kind of the written opinion is makes it a point about the wife was kind of destitute or appear to be destitute, but the significance and for listeners that don't know under 14, 10, 1 15, that this statute on child support child support doesn't the obligation does not start accruing until the later of when someone moves out or the petition. So that moving out that physical separation is pretty significant because the idea is that we're paying expenses and that there's really no need for support, but in the Harold Case, they said, you know, you're living under the same roof. And even then we're going to award you retroactive maintenance. I think that that's at least what was so kind of noteworthy from my perspective on that case,

Robin Beattie (32m 30s):
If you're, so let's just say I'm awarded $144,000 in temporary maintenance, and we're still not divorced. Is that property now, what happens with that? I mean, if I take it and put it in the bank domain, then have to divide it or do I have to spend it all and then have I just really gone above and beyond my reasonable unnecessary expenditures because I just spent $144,000 in six months. I mean, it doesn't make a great deal of sense to me, particularly for temporary maintenance. Right?

Ryan Kalamaya (33m 2s):
Well, let's talk about the other case that was eye opening or raise some eyebrows. So tell us about inner marriages of Stratman.

Robin Beattie (33m 11s):
That one is just from December of 2021, so less than a month old actually, or right about a months old. And in that one, the parties actually filed a temporary orders agreement where they agreed this is going to be the temporary maintenance. It started in July, 2019, went through their permanent orders. And then it permanent orders. The court awarded maintenance from before the date that the petition was filed to the date that temporary maintenance began. So again, I don't know how you show that that was needed if the time has already passed. That gave him that does not make sense to me, but I, nobody asked my opinion. I'm not actually on the court of appeals, but in any event, what they looked at was they looked at the changes to the statute.

Robin Beattie (33m 59s):
So as you and I discussed earlier in this conversation in 2014, the statute was modified very strenuously in before that, but the maintenance statute was the same as the child support statute. It said, well, maintenance is going to start on the later of the following. Number one, somebody moves out. Number two, somebody files the petition and number three, somebody gets served. So whatever the latest latest one of those is, is when maintenance was going to start, just like it says in the child support statute now. Well, in this case, in the Stratton case, what the court of appeals looked at was, well, you took that language out. And you said that the court is just going to determine the term for payment of temporary maintenance.

Robin Beattie (34m 46s):
And by taking out the specific language, you must have meant to open the flood gates and be able to award whatever you think is fair. So, but again, they made that finding regarding temporary maintenance, but with regard to permanent maintenance, they, once again remanded the case because they said the court of appeals said that the trial court did not make sufficient findings. And so in this case, it said, well, you didn't make findings on those federal tax implications in maintenance. That's what you and I were talking about a few minutes ago, you didn't make findings on the advisory term of the maintenance or the advisory guideline amount. So, you know, it remanded the permanent maintenance award.

Robin Beattie (35m 27s):
So

Ryan Kalamaya (35m 28s):
The difference between the child support statue in the maintenance statute, for example, underemployment, which hopefully we can have you come back on. And we, you know, before recording this show, we were talking about the various issues and that we can talk about at some point, we'll talk about underemployment, but the difference between child support in viewing what the age of a child for underemployment versus maintenance date look at income and the used to be the same. But now it's just, it's always fascinating when you get into the legislative language that is used and how critical it is. I mean, that's what we as lawyers do. And I do think that there is probably an overhaul that is needed to make those a little bit more consistent between each other and really look at it holistically because there are these various issues, deduction of depreciation or not.

Ryan Kalamaya (36m 20s):
And those various issues that you and I could geek out on all day long. You know, it's something that I think is worth mentioning when you are dealing with those issues in a divorce.

Robin Beattie (36m 31s):
I agree with you. And I mean, if you are interested in changing the statute, I would encourage anyone. Who's interested to really write down what changes they think should be seen and, you know, submit them because changes do happen and that's how they happen. But the squeaky wheel gets the grease

Ryan Kalamaya (36m 49s):
Indeed. Well, Robin, thank you for your time. Can you tell people for people that are dealing with maintenance, whether it be temporary maintenance or anything, permanent maintenance, where can they find you? And can you tell us a little bit about what the best way to find you is? Oh,

Robin Beattie (37m 4s):
Well I met Paula Polidori, Franklin Monaghan and baby. So just Googling my firm or my name Robin Batey would be the easiest way to find me. We're actually in the midst of an exciting move. So we'll be moving from our current location to a location, two miles away. That's just gorgeous and we're so excited, but I should still be very, very,

Ryan Kalamaya (37m 25s):
And are you guys remaining in Lakewood? We will remain in Lakewood. Yes. And I know that you guys handle a lot of different kinds of family law cases, but your firm specializes in family law and that is what you exclusively handle, including maintenance cases, but Robyn, always a pleasure. Thank you for joining us. And hopefully we can chat more on a future episode of Divorce at Altitude. Well, thank

Robin Beattie (37m 49s):
You for having me. I really, really appreciate it, Ryan. Indeed.

Ryan Kalamaya (37m 54s):
Everyone. This is Ryan again. Thank you for joining us on Divorce at Altitude. If you found our tips, insight or discussion, helpful, please tell a friend about this podcast for show notes, additional resources or links mentioned on today's episode. Visit divorce@altitude.com. Follow us on apple podcasts, Spotify, or wherever you listen in. Many of our episodes are also posted on YouTube. You can also find me at Kalamaya dot law or 9 7 8 3 1 5 2 3 6 5 that's K a L a M a y.law.